Will "no jab" really mean "no job"?

As we are all aware the roll-out of the COVID-19 vaccine started early 2021. The big question was, whether the vaccination should be made compulsory for employees in certain job roles.

Currently the vaccination timeline is that, every adult will be offered the COVID-19 vaccine by 31 July 2021. Interestingly, there is currently no legal requirement to have the vaccination. The Public Health (Control of Disease) Act 1984, gives the government powers to prevent, control or mitigate the spread of an infection or contamination. It specifically states that regulations cannot require a person to undertake medical treatment, including a vaccination. There has been much talk about making the vaccination compulsory for frontline healthcare workers and care home staff. To date, no legislation has been implemented to support this.

So can an employer prevent an employee from coming to work if they haven’t received the vaccine? The Health and Safety at Work, etc. Act 1974 requires all employees to:

take reasonable care for the health and safety of themselves and other persons who may be affected by their acts or omissions at work, and
co-operate with their employers so far as is necessary to enable the employer to comply with their health and safety duties.

A best practice approach from a health and safety perspective would be for employers to comply with their health and safety obligations by:

consulting with employees and representatives;
implementing COVID-19 secure measures;
carrying out full risk assessments, and
keeping the risk assessments under regular review.

Employers should only be excluding employees from the workplace as a last resort. They should consider alternatives such as working remotely from home. There is a very real risk that exclusion from the workplace could amount to constructive dismissal and or discrimination claims being brought by the employees. Withholding pay is another area of great concern. Not allowing an employee to work who is willing to work but has not had the vaccine, may also amount to an unlawful deduction from wages.

Employees dismissed for refusing to take the vaccine are likely to be argued by employers as dismissals on grounds of “some other substantial reason” or conduct. In both instances, the employer will need to show that they have acted reasonably in the circumstances. Was there pressure from third parties, where customers or service users insistent on only dealing with staff who are vaccinated.

The Tribunal is likely to consider, given the circumstances, whether the employer’s instruction was reasonable and whether the employee’s refusal was unreasonable. An employer may want to consider the following before deciding to dismiss:

what are the reasons for the refusal, (ie, medical, religious)?
was it made clear why the vaccination is necessary (i.e., working with vulnerable people)?
has the employee been warned that dismissal could be the end result?
have alternative duties and or redeployment been considered?

It is likely that a Tribunal would be hard pushed to find that it was fair to dismiss an employee or otherwise impose a medical procedure on them, especially in roles that are not in the health and care sectors.

To sum up, it would be best practice for employers in most sectors to encourage employees to be vaccinated and not to compel them to be vaccinated. Offering some paid time off for vaccination is likely to encourage vaccination uptake. Considering paying employees full pay instead of sick pay if they are off work from the side effects of taking the jab. Employers may even consider not marking that absence as a “sick absence” given the pandemic status of the virus. Ultimately, with such support on offer it may make a reluctant employee reconsider their position.

To speak to us about your employment issues, whether to do with strategic business decisions or a particular issue involving an employee, get in touch with Bhupinder Devgon or another member of our Employment Law team (0330 311 1950).